The Oregon State Bar House of Delegates passed a resolution
at its meeting in September 2001 directing the Board of Governors to
establish and supervise a comprehensive study of the Oregon State Bar
disciplinary system. This resolution is attached to this report as Exhibit
1. The resolution further directed the Board of Governors to report
at the 2002 HOD meeting on the results of the study, and to make recommendations
to the HOD at that meeting on changes it believes should be made to
present disciplinary statutes, rules and processes. The resolution directed
that the study provide for input from the OSB membership and other interested
groups within each region of the bar and, if possible, with the assistance
of local bar associations. The resolution directed that the study be
broad in scope, but include the review of nine areas. Those areas included:

1. The specific purposes and goals of the disciplinary
process;

2. The appropriate speed of the process;

3. The process of setting enforcement priorities;

4. The appropriate use of volunteers or paid staff;
and

5. The appropriate methods for the bar to debate,
develop ethics rules, and educate lawyers on those rules, other than
the current adversarial case law system of resolving ethics complaints.

In October 2001, 2001 OSB President Ed Harnden appointed
the Task Force, which consisted of one judge, nine lawyers, and one
member of the public. Task Force appointees represent different geographical
areas, practice settings, and practice areas.

The members of the Disciplinary System Task Force are
Dennis Karnopp, chair (Bend); Brad Berry (McMinnville); Marc Blackman
(Portland); Court of Appeals Judge David Brewer (Salem); Win Calkins
(Eugene); Tom Christ (Portland); Kelly Doyle (Portland); Linda Eyerman
(Portland); Mary Mertens James (Salem); and Judy Uherbelau (Ashland).
Bette Worcester, a public member of the Board of Governors, is BOG liaison
to the group.

Nine meetings of the full Task Force were held between
November 2001 and July 2002. In addition, subgroups attended meetings
around the state seeking input from the membership and the public. Several
subcommittees worked on specific issues.

EXECUTIVE SUMMARY

Preliminary Comments

The Supreme Court has consistently emphasized that the
purpose of lawyer discipline is protection of the public. Ex
parte Tanner, 49 Or. 31, 36, 88 P. 301 (1907); In re Meyer
(II), 328 Ore. 220, 226, 970 P.2d 647 (1999). The two most consistent
complaints heard by the Task Force - both of which adversely affect
this purpose - were:

1. The disciplinary process is too slow;

2. The disciplinary process is [or at least is
perceived to be] 'biased.' 1

The task force considered, but ultimately did not adopt,
recommendations that would address these issues directly. It chose,
instead, to focus on what it found to be their root causes.

On the delay issue, for example, the task force rejected
the idea of reducing or eliminating the role of 'volunteers'
(to which much delay is attributed) both because it found broad support
for keeping 'regular lawyers' an integral part of the investigation,
charging, and decision-making process and because it found little support
for cost increases which would result from replacing volunteers with
paid staff. For the same reasons, it also rejected resort to 'sanctions'
to enforce the deadlines that are already part of the process. See,
e. g. BR 2.5(a) (investigation by disciplinary counsel); BR 2.5(e)
(LPRC investigations and reports); BR 5.4 (hearing schedules); BR 2.4(i)(2)(a)
(issuance of trial panel opinions).

On the bias issue, the task force questioned whether an
objective assessment were possible. It concluded that even if it was,
it lacked the time and resources to perform it and doubted that it would
put the perception issue to rest. Specific proposals - for example,
using criteria related to practice area (such as criminal or domestic
relations law) when processing complaints or practice setting (such
as size and type) when assessing possible disposition - were therefore
put aside, at least for the time being.

The task force believes that its recommendations, if adopted
as a whole, will significantly reduce the time required to resolve legitimate
disciplinary problems and generate confidence in the public and the
bar that the process is thorough, fair, effective, and focused on its
purpose: protection of the public.

Summary of Task Force Recommendations

1. Revise the Oregon Code of Professional Responsibility
to make it simpler, less vague and easier to follow.

2. Recognize reliance on the advice of general
counsel as a showing of a lawyer’s good faith effort to comply with
the Code or in mitigation of a disciplinary violation.

3. Ask the CLE Committee to develop and promote
ethics programs directed to lawyers practicing in areas and settings
that appear to generate a disproportionate number of complaints.

4. Create a Consumer Assistance Program within
General Counsel’s Office to help clients and lawyers resolve problems
which do not involve ethics issues, but could if left unaddressed.

5. Implement a diversion alternative for certain
types of violations and circumstances.

6. Provide for the 'expungement' of
inquiries and complaints which are dismissed after investigation.

7. Vest the SPRB with discretion not to prosecute
cases involving violations that are technical or did not result in
injury.

8. Create a 'disciplinary case manager'
for filing and calendar management purposes within General Counsel’s
Office.

10. Abolish 'automatic' Supreme Court
review in all cases, including those in which the trial panel recommends
a sanction greater than a six month suspension.

11. Encourage greater use of BR 6.2(a) probation
as a sanction.

12. Create a definition of 'Disciplinary
Complaint' for purposes of bar recordkeeping.

Report of the Task Force

The task force and OSB staff discussed how to best collect
useful information concerning the charge of the task force. Beyond extensive
discussion at nine task force meetings, the task force and bar staff
engaged in the following activities to gather information about the
issues the task force was charged with reviewing:

1. All Oregon State Bar members were contacted
by e-mail, fax or mail and asked to provide input on the issues contained
in the 2001 HOD resolution. The task force received and reviewed all
responses.

2. All bar members were also asked to participate
in an electronic survey (the results of which are attached as Exhibit
2). Almost five hundred lawyers responded to this survey. The task
force received and reviewed the survey results.

3. Task force members talked to many bar members
personally on an ad hoc basis about their concerns.

4. Task force members and staff arranged and participated
in a number of educational/feedback events concerning the work of
the task force. They included meetings with the Disciplinary Board,
the Deschutes County Bar Association, Jackson County Bar Association,
Lane County Bar Association, Marion County Bar Association, Gus Solomon
Inn of Court, and the Sixth Judicial District Bar Association (Pendleton).

5. The task force asked bar staff to compile statistics
regarding the disposition of ethics complaints over the period of
1998 to 2001.

6. At its invitation, members of the Supreme Court,
the State Professional Responsibility Board, and local professional
responsibility committees attended one or more meetings of the Task
Force. Also at its invitation, staff from the bar’s general counsel’s
office, staff from its disciplinary counsel’s office, and attorneys
who regularly defend lawyers in the disciplinary process appeared
and shared their views and perspectives. A number of interested bar
members attended each task force meeting and provided input on a variety
of topics.

7. Questionnaires were sent to lawyers and judges
who had made complaints to the bar about lawyers for a sample period
of time. Questionnaires were also sent to members of the public who
had made complaints about lawyers for a similar period of time.

8. Information was obtained from other state bars
and other professional organizations on specific topics.

The task force has discussed all aspects of the disciplinary
process from start to finish. The task force reviewed the time frame
for the initial review of complaints, staff action on complaints, their
review by the State Professional Responsibility Board, the trial process
before the Disciplinary Board, and the review process before the Oregon
Supreme Court. The task force discussed and debated many issues, including
the following:

1. Is the process, at one or more or all stages,
too slow?

2. Is the process biased against certain lawyers?

3. Should lawyers be able to rely on telephone
ethics advice from the bar as a complete defense to ethics charges
or, at a minimum, as mitigation of any sanction imposed for action
taken in reliance on that advice?

4. Should dismissed complaints be expunged from
member records after the passage of some period of time?

5. Could the bar help clients and lawyers resolve
customer service issues even if they did not state an ethics violation?

6. Could minor violations be resolved by providing
lawyers with help in addressing their cause as opposed to imposing
a sanction such as a reprimand or short term suspension?

7. Could disputes over the interpretation of disciplinary
rules be resolved by use of procedures other than disciplinary prosecutions?

8. Was the volunteer trial panel system for adjudicating
disciplinary complaints working?

9. Should the State Professional Responsibility
Board be given more discretion in deciding whether charges should
be filed? Are there situations and circumstances where prosecution
may not be warranted even if a rule violation has occurred?

Refinement of Issues

Following extensive discussion of the foregoing issues
and others, the task force undertook to narrow the issues it felt deserved
further consideration. The group wanted to focus on potential improvements
to address key trouble spots in the disciplinary process. The initial
list of key issues included:

1. Rewriting the Code of Professional Responsibility
to make the rules clearer and more concise.

2. Establishing a Consumer Assistance Program
to deal with attorney-client communication and related issues.

3. Establishing a Diversion Program to offer alternatives
to discipline to resolve minor ethics violations.

4. Adopting a rule that allows for the expungement
of dismissed complaints from membership records after the passage
of a designated period of time.

5. Adopting a rule giving the State Professional
Responsibility Board greater authority to decline prosecution for
very technical violations or cases of 'no harm, no foul.'

6. Establishing a fast track process to obtain
a judicial ruling regarding the meaning of disciplinary rules in lieu
of full-blown disciplinary proceedings.

7. Creating the position of presiding judge of
the Disciplinary Board who would oversee the trial process. Support
staff in the form of a central filing/monitoring clerk could be provided.
The presiding judge would be responsible for ensuring all trial panels
completed their cases in a timely manner and that all necessary paperwork
was similarly processed.

8. Changing the threshold for automatic review
of cases by the Supreme Court from the current level (more than a
six month suspension) to a higher level. Similarly, changing the current
standard of de novo review by the Supreme Court to something
more deferential to the rulings of the trial panels.

9. Adopting a rule that allows for reliance on
bar ethics advice to serve as mitigation by the trial panel or the
Supreme Court in imposing sanctions.

10. Directing the bar to provide additional continuing
legal education focusing on ethical issues that lawyers in high complaint
practice areas face on a recurring basis.

11. Adopting 'sentencing' guidelines
to give greater assurance to lawyers of the sanctions that would most
likely be imposed for particular rule violations.

12. Adopting a rule that provides alternative
sanctions for violations of the Code of Professional Responsibility
such as alternatives to suspensions for sole practitioners.

TASK FORCE RECOMMENDATIONS

PROPOSAL # 1:
Revise the Code of Professional Responsibility

The Task Force heard a variety of complaints about the
disciplinary process. Many were not really complaints about the process
itself, but about the ethical standards the process is meant to enforce.
In other words, for these complainants, the problem is substantive,
not procedural. They believe that the profession is over-regulated –
that it is subject to too many disciplinary rules, and that too many
of the rules are so vague and indefinite they do not give fair notice
of what is prohibited. For instance, DR 6-101(A) provides that '[a]
lawyer shall provide competent representation to a client.' What
exactly is 'competent' representation? DR 6-101(B) says a
lawyer 'shall not neglect a legal matter? When exactly does procrastination
turn into actionable 'neglect'? DR 3-101(A) provides that
a lawyer shall not aid a non-lawyer in the 'practice of law'
– a term that has proved nearly impossible to define in other settings.
See State Bar v. Security Escrows, Inc., 233 Or. 80, 85-86, 377
P.2d 334 (1962). DR 1-102(A)(4) prohibits 'conduct that is prejudicial
to the administration of justice.' What precisely is within – or,
perhaps more importantly, without – the reach of the rule?

Law, of course, is not the only regulated profession.
All professionals are subject to regulatory schemes of one sort or another.
And everyone, professional or otherwise, is subject to the criminal
code. But the rules for lawyers seem so much more pervasive, and so
much less precise – perhaps because the modern Code of Professional
Responsibility is based on provisions in earlier codes that were meant
to be goals or aspirations, not proscriptions, and thus appeared as
generalities. See In re Tonkon, 292 Or. 660, 664, 642 P.2d 660
(1982) (explaining that the 'Canons' and 'Ethical Considerations'
of the American Bar Association’s Model Code of Professional Responsibility
'were intended as guides to professional conduct but not as tests
for disqualifying or otherwise disciplining members of the bar').

It is beyond the mission of this Task Force to review
the disciplinary rules with an eye toward making them simpler and less
vague and thus easier to follow. Nevertheless, the Task Force recommends
that the Bar undertake such a review, believing it may help to reduce
lawyer dissatisfaction with the disciplinary process. With less 'process'
and clearer DRs, fewer lawyers will unwittingly violate the rules (or
be accused of doing so). At the same time, witting, or knowing, violations,
will be easier – and, hence, quicker – to prove. The task force supports
the efforts currently underway by the ABA and the OSB Ethics Committee
to review the OSB Code of Professional Responsibility.

PROPOSAL # 2:
Recognize Reliance on the Advice of General Counsel as a showing of
a lawyer’s good faith effort to comply with the Code or in mitigation
of a Disciplinary Violation

The case of In re Brandt/Griffin, 331 Or 113, 10
P3d 906 (2000) indicated that legal ethics advice from Bar General Counsel
does not provide a defense to disciplinary violations and does not estop
the Bar from charging violations based on conduct undertaken after obtaining
the advice. The court did not reach the question of whether the attorney
had 'fully and accurately informed' Bar counsel. The court cited the
earlier case of In re Ainsworth, 289 Or 479, 614 P2d 1127 (1980).
However, it should be noted that in the case of In re McMenamin,
319 Or 609, 879 P2d 173 (1994), both the concurring and dissenting opinions
took the accused seeking Bar legal ethics advice into consideration
in their analysis regarding the lawyer's conduct.

The In re Brandt/Griffin opinion has resulted in
a number of comments to the Task Force about the fairness of the ruling
in that case. The Task Force considered not only the comments of various
persons to the Task Force verbally and in writing but also a prior ethics
survey conducted by the Bar on ethics advice and prior studies and reports
on the topic, as well as the approaches taken by other states.

Alabama, Florida and West Virginia are states which have
a formal rule on ethics advice as a defense or mitigation. States with
a practice recognizing ethics advice as defense or mitigation include
Colorado, Michigan, Missouri, Oklahoma, Rhode Island (not clear if formal
rule), Tennessee, Utah, Virginia and Washington. States without a formal
rule or recognized practice are Alaska, Delaware, Idaho, Maryland, Massachusetts,
Texas, Washington, D.C. and Wisconsin. States with rules explicitly
stating that ethics advice is not a defense or mitigation include Illinois
and New Jersey. These findings were based upon informal e-mail surveys
which did not necessarily cover every state.

Issues the Task Force considered are the perception of
unfairness by Bar members, the need for upholding the ethics rules,
whether a rule should cover oral advice from the Bar versus written
advice, the practicality of logging in oral inquiries and taking notes,
and attendant proof difficulties as well as staffing implications, the
issue of time lag to obtain written opinions, the implications for the
public records law, and whether a rule allowing reliance on Bar counsel
should be extended to reliance on private counsel.

The Task Force decided that the accused should be able
to rely upon written opinions of the Bar. Written opinions include e-mail
communications. The Task Force decided to propose a new disciplinary
rule modeled after Judicial Rule 6 entitled 'Advisory Opinions on Judicial
Conduct; Consideration Given in Judicial Conduct Proceedings.'2

The new DR 1-105 which the Task Force recommends reads
as follows:

DR 1-105 Written Advisory Opinions on Professional Conduct;
Consideration Given in Disciplinary Proceedings

(A) The Oregon State Bar Board of Governors may issue
formal written advisory opinions on questions under this code. The
Oregon State Bar Legal Ethics Committee and General Counsel may also
issue informal written advisory opinions on questions under this code.
The General Counsel's Office of the Oregon State Bar shall maintain
records of both OSB formal and informal ethics opinions and shall
make copies of each available to the Oregon Supreme Court, Disciplinary
Board, State Professional Responsibility Board, and Disciplinary Counsel.
The General Counsel's Office may also disseminate the bar's advisory
opinions as it deems appropriate to its role in educating lawyers
about this code.

(B) In considering alleged violations of this code,
the Disciplinary Board and Oregon Supreme Court may consider any lawyer's
good faith effort to comply with an opinion issued under subsection
(A) of this rule as

(1) a showing of the lawyer's good faith effort to
comply with this code; and

(2) a basis for mitigation of any sanction that may
be imposed if the lawyer is found to be in violation of this code.

(C) This rule is not intended to, and does not, preclude
the Disciplinary Board or the Oregon Supreme Court from considering
any other evidence of either good faith or basis for mitigation in
a bar disciplinary proceeding.

It is evident that a disproportionate percentage of ethics
complaints and founded violations tend to concentrate in certain areas
of litigation practice. The most obvious areas of concern are (1) criminal
defense and prisoner litigation practice; and (2) domestic relations.
Those specialties, although substantively unrelated, are joined at the
hip by the confluence of high emotional and practical stakes for clients
and other stakeholders.

Plans for systemic improvement should focus on membership
categories that attract statistically disproportionate complaints and
violations. Specifically, the bar should exert its best efforts to target
educational and support services to practitioners in high-risk categories.
Those services should include ethics, professionalism and malpractice
avoidance training. Each year, Disciplinary Counsel should identify
and statistically analyze bar complaints based on known high-risk categories,
and should attempt to identify emerging trends, if any, as well. Disciplinary
Counsel should forward that analysis, in report form, to the Board of
Governors, the House of Delegates, and the CLE Publications and Seminars
Departments of the Oregon State Bar and other Oregon bar-related organizations.

The Board of Governors and House of Delegates should review
annually the array of educational and support services offered by the
Oregon State Bar in light of Disciplinary Counsel's report, and specifically
should direct the provision of appropriate targeted services to membership
categories burdened by a disproportionate risk of ethics complaints
and founded violations.

The bar should annually study whether certain disciplinary
rules impose greater burdens on certain practice areas and should study
whether changes should be made to the disciplinary rules to address
these concerns.

PROPOSAL # 4:
Establish a 'Consumer Assistance Program'

The Task Force recommends the establishment of a Consumer
Assistance Program (CAP) under the auspices of the General Counsel’s
Office for the purpose of resolving minor problems between attorneys
and clients which do not involve an ethics issue. Disciplinary Counsel
would continue to be responsible for the initial intake and screening
of all written inquiries concerning lawyers. For those matters that
disciplinary counsel determined did not raise an arguable ethics violation
or were subsequently dismissed, disciplinary counsel would have authority
to refer them to the CAP program for purposes of attempting to resolve
the problem.

Background/HistoryA number of states have established Consumer Assistance Programs
to field inquiries and complaints about lawyers and assist in resolving
them. The overall goal is to resolve minor conflicts and disputes between
the public and lawyers before they become serious disciplinary problems.
Georgia and Mississippi were the first states to implement a consumer
assistance program, but similar programs now exist in Colorado, Arizona,
Utah, Hawaii, Kentucky, and other states.

The Oregon State Bar staff began gathering information
about CAP programs in 1997 but did not pursue proposals for an Oregon
program due to resource limitations. In 1999 the Board of Governors
became interested in the concept and initiated a study of CAP programs
in other states. Based on favorable reports, the Strategic Planning
Committee agreed to fund a six-month pilot program known as the Client
Ombudsman. This program began in February 2000 and was staffed by a
.5 FTE attorney. A follow-up survey of clients and attorneys who had
participated in the program showed high satisfaction with the services
received.

The role of the CAP as recommended by the task force would
be broader than the Pilot Client Ombudsman pilot project which the Oregon
State Bar sponsored in 2000, in that the CAP would not only respond
to telephone calls, but would also handle some of the substantial number
of written inquiries and/or complaints filed with Disciplinary Counsel.
At the discretion of Disciplinary Counsel, some of these matters would
be forwarded to CAP for reply or intervention.

PROPOSAL # 5:Diversion

HistoryCurrently all matters referred to the Bar for alleged misconduct
are treated the same. It is not uncommon that the investigation into
the allegations may readily determine that the conduct complained of
occurred, was relatively minor, and was principally caused by an underlying
problem of the attorney such as substance abuse, mental health problems,
temporary personal problems, or other causes. In 1997 the Oregon Supreme
Court rejected a Bar proposal for a diversion program.

RecommendationThe Task Force recommends further investigation into, and the development
of, a Diversion Program for minor violations of the DR's when such violations
are primarily caused by an underlying problem of the accused attorney.
Such a program would incorporate a process or protocol to aid the subject
lawyer in addressing the underlying problem causing the violation such
that the violation is unlikely to occur again. Upon successful completion
of the Diversion Program, the disciplinary matter would be dismissed.
Such a program should be available only once to a particular attorney.
Standards for such a program should be clear. Diversion could occur
at any point during the disciplinary process, preferably before the
filing of a formal complaint by the State Professional Responsibility
Board (SPRB).

Discussion

Protection of the PublicAlthough the disciplinary process may serve other purposes, the
main function is to protect the public. When a lawyer develops a personal
problem which inhibits his/her ability to adequately represent clients,
and to such a degree as to commit ethical violations, disciplining the
attorney does not necessarily enhance the protection of the public.
By aiding the attorney to address the underlying problem, and correct
it, a diversion process would not only protect the public from the likelihood
of future violations, but also help the attorney from finding him/herself
in a similar situation.

Criminal SystemOregon criminal law has long recognized that in suitable circumstances,
the District Attorney and the Court may find it appropriate to divert
a criminal case from the normal process by referring the Defendant 'to
a supervised performance program prior to adjudication.' ORS 135.881(2).
In fact, a similar program referred to as 'Conditional Discharge', initially
limited to drug offenses, was expanded by the 2001 Legislature to include
other crimes showing a public interest in treating the underlying problem
rather than obtaining a conviction. As an aside, the conditional discharge
process differs from the diversion process by requiring an offender
to enter a plea of guilty before being placed into the program; diversion
does not. The criminal diversion system recognizes considerations including
the nature of the offense, special characteristics or difficulties of
the offender, whether the offender is a 'first-time' offender, the probability
that the offender will cooperate and benefit from a treatment alternative,
and other factors. ORS 135.886(2). During the diversion period, the
proceedings are stayed. The offender enters into a specific diversion
agreement setting forth the requirements necessary to successfully complete
the diversion. Upon successful completion of the program, the matter
is dismissed.

Other JurisdictionsA diversion program adopted by this State would not be unique. The
States of Washington and Arizona both have diversion programs. Each
program recognizes the benefit of early identification of attorneys
that have committed 'less serious' violations of Rules of Professional
Conduct which do not raise questions about their moral fitness or integrity
to practice law. Both prohibit Diversion where the alleged conduct involved
serious misconduct. Both recognize the need for an early referral of
the attorney to an appropriate alternative disposition. Each provide
for a Diversion Contract or Memorandum of Understanding. Although the
two programs do differ in process, both appear to recognize the benefit
of a structured program resulting in dismissal of the disciplinary complaint
once the attorney has successfully dealt with a recognized underlying
problem.

ABA StandardsThe American Bar Association also endorses the use of Diversion
programs in appropriate cases and provides guidance into which types
of misconduct may be suitable for diversion.

ProcessTo implement a Diversion Program would require a change to the Bar
Rules of Procedure. The BOG would present such a proposal to the Supreme
Court.

Since the Oregon Supreme Court’s decision in Sadler
v. Oregon State Bar, 275 Or. 279, 550 P.2d 1218 (1976) the disciplinary
records of Oregon lawyers have been subject to public inspection under
the Public Records Law. ORS 9.010(1) currently provides that the Oregon
State Bar is subject to the Public Records Law.

While public access to the records of bar members who
have been admonished by the State Professional Responsibility Board
or disciplined by the Disciplinary Board or Supreme Court is in the
public interest for a variety of reasons, some bar members have been
and continue to be concerned that dismissed complaints remain a part
of their public membership records with the Oregon State Bar. These
members feel stigmatized by the false assumption that a dismissed complaint
about their conduct is a disciplinary record. After carefully considering
these concerns, the task force believes that allegations of misconduct
that the bar has investigated and dismissed should be expunged from
the public records of the Oregon State Bar four years after their dismissal.
Expungement would result in the separation of the records of dismissed
complaints from other bar membership records. Expunged records would
be sealed and would not be available for public inspection except as
authorized by the circuit court on motion of the bar, the accused or
other interested party and a showing of good cause. See, for example,
the process for obtaining access to expunged criminal records under
ORS 137.225(9), (10), and (11).

The task force recommends that the Board of Governors
and House of Delegates approve the development of whatever statutory
and rule changes may be necessary to establish this expungement process
for inquiries and dismissed complaints. Dismissed complaints will include
any complaint or inquiry that did not result in discipline or admonition.
They will also include the records of formal disciplinary charges that
were dismissed by final action of the Disciplinary Board and the Oregon
Supreme Court.

The OSB House of Delegates rejected a member resolution
in 1998 that would have authorized the bar to sponsor legislation in
the 1999 legislative session seeking to exempt frivolous bar complaints
from public disclosure. The resolution defined what was considered a
frivolous bar complaint. The task force’s proposal is significantly
different. All dismissed complaints will be treated the same and they
will be available for public inspection for four years. Upon the passage
of that period of time, the records will be removed from the public
records of the bar, but retained in a sealed fashion. The bar, the accused,
and other interested parties will have the right to petition the circuit
court for access to the sealed material upon a showing of good cause.

PROPOSAL # 7:Grant SPRB Discretion to Decline Prosecution

The State Professional Responsibility Board has very little
discretion in deciding whether to charge a lawyer with an ethics violation.
It can resolve minor transgressions with a letter of admonition. See
BR 2.5(d)(1)(B) and (f)(1)(B). But if the SPRB finds probable cause
to believe that misconduct has occurred, it must authorize the filing
of a formal complaint, except in limited circumstances that do not include
the absence of demonstrable harm to the client or public. See
BR 2.5(h)(2).3 In this regard, the
SPRB does not have 'prosecutorial discretion' to dismiss 'no
harm, no foul' cases or cases involving only technical violations
of the rules.

The Task Force believes that the SPRB should be given
that discretion. The purpose of the disciplinary rules is to protect
the public, In re Huffman, 331 Or. 209, 223, 13 P.3d 994 (2000),
and in cases where there is an apparent violation of the rules but no
apparent harm to the public or any member of it, the SPRB should be
able, if it so chooses, to dismiss the case without even a letter of
admonition. Not every violation of the criminal code requires prosecution.
Likewise, not every ethics violation requires discipline. Just as district
attorneys should have the discretion not to charge in appropriate cases,
so should the SPRB.

The Task Force recognizes that giving the SPRB greater
discretion in charging decisions may alarm those lawyers who believe
that the present disciplinary process is biased against lawyers in small
firms. But the Task Force believes there is no bias within the SPRB
itself and that giving that body the discretion to dismiss technical
and non-harmful violations of the disciplinary rules will inure to the
benefit of all lawyers, including small firm practitioners. At the same
time, it will not harm the public, two members of which, it should be
remembered, sit on the SPRB.

For these reasons, the Task Force recommends that the
Bar submit to the Disciplinary Rules and Procedures Committee, for its
review and referral to the Supreme Court, an amendment to BR 2.5 that
would give the SPRB the discretion to dismiss cases involving technical
or non-harmful violations of the DRs.

PROPOSAL # 8:
Create a 'Disciplinary Case Manager'

In the state court system in Oregon, cases are filed with
the court clerk and given a case or docket number. All pleadings thereafter
are also filed with the court and are maintained in the court file.

The foregoing model is not followed in the current lawyer
discipline system. Instead, a case is 'filed' when the formal
complaint is signed by Disciplinary Counsel. Thereafter, pleadings are
maintained in a file for each case by Disciplinary Counsel, although
an accused lawyer often files his or her pleadings directly with a trial
panel or, mistakenly, directly with the Supreme Court.

The task force recommends that the rules of procedure
be amended so that the filing process for disciplinary cases more closely
resemble the filing process for cases in the Oregon court system. While
the specific rule changes will have to be worked out at a later date,
the general contours of the task force’s recommendation are as follows:

1. Every formal complaint and subsequent disciplinary
pleading in each case will be filed with a clerk who will be responsible
for maintaining the official file in each case and reporting to the
Disciplinary Board Chairperson regarding the number and status of
all pending matters at the trial level. The task force recommends
that this function be assigned to personnel under the supervision
of the OSB General Counsel. The General Counsel’s Office has for a
number of years been responsible for the Disciplinary Board appointment
process and the yearly Disciplinary Board Conference. This new function
is merely an extension of these activities.

2. The Disciplinary Board Docket Clerk should also assist
the state chair and trial panel chairs in processing paperwork, scheduling
hearings, and making other appropriate arrangements for hearings.

Disciplinary Counsel shouldn’t serve in the dual capacity
of prosecutor and Disciplinary Board Docket Clerk. These functions should
be separated. General Counsel’s Office should serve as Disciplinary
Board Docket Clerk to maintain the official file in all formal disciplinary
proceedings and to assist the Disciplinary Board in the performance
of its trial court functions in the disciplinary process. The task force
concluded that having a case manager as recommended in this proposal
will help avoid the delays that occur after the filing of the complaint.

HistoryA previous rule required mandatory pre- trial settlement conferences.
The Disciplinary Board concluded this was an added layer of process
that was not effective, so in 1995 the Supreme Court changed the rule
to make the conferences optional.

Current procedureBR 4.6 and 4.7 are the Bar Rules of Procedures that are involved,
although neither specifically identifies that a settlement conference
is an available tool to resolve a complaint short of a hearing. The
rule references the right of either party to request a pre-hearing conference.
The request must be made within seven days of mailing the pleadings
to the trial panel, and the pre-hearing conference must take place more
than 21 days before the hearing, and is conducted by a member of the
Disciplinary Board.4 Attendance is
mandatory by the Bar, the accused and counsel for the accused. The rule
does not specifically identify settlement discussion or mediation as
an element of the pre-hearing conference. It speaks only to the ability
to narrow factual or legal issues, or to 'facilitate discussion
regarding discipline by consent under BR 3.6, if appropriate.'

ProposalThe task force recommends to the Board of Governors that it identify
by rule case assessment or mediation as an alternative process available
to the Bar and the accused attorney to resolve disciplinary complaints.

Case assessment is defined on the web page of the Oregon
Dispute Resolution Commission as: 'the use of an impartial third
party who will work with parties to determine the potential for settlement,
what type of process would assist in settlement, the cost of such a
process, who should participate in such a process and an estimated timeframe
in which settlement may occur.'

Mediation is defined on the web page of the Oregon Dispute
Resolution Commission as: 'the intervention into a dispute or negotiation
by an acceptable, impartial, and neutral third party who will assist
contending parties negotiate a mutually acceptable settlement of issues
in a dispute. The mediator has no decision-making authority.'

Both parties must agree to participate in the mediation.
Mediation may occur at any time after the filing of a formal complaint
by the SPRB, although its scheduling shall not displace or delay a hearing
that has been scheduled.

After a trial panel issues a decision, only the State
Chair can authorize mediation. Settlement agreements reached through
mediation are subject to approval in the same manner as Discipline by
Consent (BR 3.6). Other rules may require amendment to authorize settlement
of formal complaints, through mediation. It is unclear, for example,
who has the authority to consent to dismissal of a complaint, to an
alternative sanction, etc.

The Board of Governors should appoint a work group to
assess the best approach to implementing a mediation process into the
disciplinary hearing process, the stages at which it is available, and
the designation of a list of qualified, trained mediators to conduct
said mediations. Expenses for the mediator would be shared unless the
parties agreed otherwise.

PROPOSAL # 10:
Require Review by the Supreme Court only in those Cases in which one
Party Desires Review

ORS 9.536(1), (2) and (3) currently provide as follows:

9.536 Board decision; appeal to Supreme Court; review;
costs.

(1) Upon the conclusion of a hearing, the disciplinary
board shall file with the State Court Administrator a written decision
in the matter. If the decision of the disciplinary board finds the
accused attorney has not committed the alleged wrongdoing or determines
that the accused attorney should be disciplined by way of reprimand
or suspension from the practice of law up to a period of six months,
the Oregon State Bar or the accused, as the case may be, may seek
review by the Supreme Court. Such review shall be a matter of right
upon the request of either party. Otherwise, the decision of the disciplinary
board shall be final. The procedure for seeking discretionary review
and on review shall be as provided in the rules of procedure.

(2) If the decision of the disciplinary board is to
suspend the accused attorney from the practice of law for a period
of longer than six months or to disbar the accused attorney, the matter
shall be reviewed by the Supreme Court. The procedure on review shall
be as provided in the rules of procedure.

(3) When a matter is before the Supreme Court for review,
the court shall consider the matter de novo and may adopt, modify
or reject the decision of the disciplinary board in whole or in part
and thereupon enter an appropriate order.

As can be seen from a review of ORS 9.536(1), the Oregon
Supreme Court automatically reviews any disciplinary case involving
a suspension of more than six months.

The task force recommends that the Board of Governors
and House of Delegates approve the sponsorship of legislation during
the 2003 legislative session to change this standard of review to eliminate
the automatic review of disciplinary cases by the Supreme Court. Corresponding
changes would have to be made to the Bar Rules of Procedure. An amended
ORS 9.536(1) would read as follows:

Upon the conclusion of a hearing, the disciplinary board
shall file with the State Court Administrator a written decision in
the matter. The Oregon State Bar or the accused may seek review of
the trial panel decision by the Supreme Court. Such review shall be
a matter of right upon the request of either party. Otherwise, the
decision of the disciplinary board shall be final. The procedure for
seeking review and on review shall be as provided in the rules of
procedure.

The foregoing change would eliminate the automatic review
of suspensions of more than six months or disbarments. The parties would
have a right to Supreme Court review of any trial panel decision. If
neither party sought review, the decision of the trial panel would be
final.

The task force also recommends that the rules of procedure
be amended to give each party sixty days from the filing of the trial
panel decision to file a notice of review with the Supreme Court. BR
10.3 currently gives the parties twenty-eight days to file a request
for review. Sixty days should give both the bar and the accused adequate
time to consider whether to ask the court to review a decision of the
trial panel.

These changes should reduce the disciplinary workload
of the Supreme Court while preserving the right of the parties to obtain
Supreme Court review of a trial panel decision with which they disagree.
Currently, suspensions of more than six months and disbarments must
be briefed and argued before the court though the parties can stipulate
that the trial panel opinion is acceptable and the discipline imposed
is appropriate under BR 10.4(b). If the parties do not so stipulate,
the full appellate review process takes a significant amount of time,
not to speak of resources. The task force believes this mandatory review
process should be eliminated. The State Professional Responsibility
Board is in the best position to protect the interests of the profession
and the state bar in deciding whether to seek Supreme Court review of
a trial panel decision by the state bar.

RecommendationThe task force recommends that the BOG request the Disciplinary
Board and the Supreme Court to consider probation with conditions pursuant
to BR 6.2 as an alternative to suspension in appropriate circumstances.

Background/HistoryThe task force discussed the issue of alternative sanctions for
attorneys in the case of suspensions. The task force heard testimony
about the disparate impact sanctions has on some attorneys, particularly
those who are sole practitioners. While the task force did not recommend
specific types of alternative sanctions, it concluded that an alternative
to suspension would serve to help the attorney being disciplined develop
systems to avoid further discipline and to change bad patterns of practice.
In addition, an alternative would serve to sanction the attorney while
allowing the attorney to remain in practice. Some of the ideas discussed
were pro bono activity, especially in conjunction with legal aid programs,
and intervention through the office management assistance program of
the PLF.

PROPOSAL # 12:
Definition of Disciplinary Complaint

The task force recommends that the Oregon State Bar change
its definition of what constitutes a disciplinary complaint. At the
very least, inquiries that disciplinary counsel determines do not raise
an arguable ethics violation should not be recorded as disciplinary
complaints.

Conclusion

DISCIPLINARY SYSTEM TASK FORCE

Minority Report #1
I join in all of the findings and recommendations in the Task Force’s
report. I write separately only because I believe the report does not
say enough about the issue whether the disciplinary process is 'biased'
against solo practioners and lawyers in small firms.

This is not a trifling matter. As noted in the majority
report, one of the two 'most consistent complaints' by lawyers
to the Task Force is that the disciplinary process is somehow biased
toward large firm lawyers – or 'at least is perceived to be.'
See Task Force Report on Page 3. Unfortunately, on this important,
perception-versus-reality question, the Task Force goes no farther than
to 'question[] whether an objective assessment [is] possible,'
id., meaning, apparently, that there is no statistical evidence
of bias against small firm lawyers. For that reason, the report suggests
that the Bar 'put aside' that issue, 'at least for the
time being.' Id.

I agree that the 'objective' evidence is inconclusive.
The Bar has not kept records of ethics complaints by firm size and,
therefore, it is not possible to determine from Bar data alone whether
the number of complaints lodged against small firm lawyers, the number
of those complaints that result in prosecution, or the number of those
prosecutions that result in discipline are disproportionate to the number
of small firm lawyers in the general population of attorneys. Conclusions
based on that data are 'statistically unreliable,' according
to memorandum from Bar staff summarizing the data. Disciplinary System
Database Analysis at 3.

A majority of the Task Force are content simply to note
the lack of reliable statistics, and then move on. I would not quit
so soon. Instead, I would go on to report that, statistics aside, we
received no other credible evidence of bias against small firm lawyers
or solo practitioners. To be sure, we heard complaints of alleged
bias. But those allegations were not supported by any non-anecdotal
evidence. No one has identified even one instance of disparate treatment
of two lawyers who were similarly situated in all respects except for
the sizes of the firms in which they practice.

I would also report that no one has offered to us a plausible
explanation for why there might be bias in the system. In my
view, that is a glaring omission which is worthy of mention, not only
because we solicited explanations, but also because the suggestion of
bias seems, on its face, rather implausible. The disciplinary
process is, for the most part, run by volunteer lawyers. Volunteers
serve on the Local Professional Responsibility Committees, which investigate
ethical complaints; the State Professional Responsibility Board, which
decides whether to prosecute; and the Disciplinary Panels, which hear
the complaints. These boards and panels are not composed disproportionately
of 'big firm' lawyers. Solo practitioners and small firm lawyers
appear to be adequately represented. And they are joined at all levels
by public members, who don’t belong to firms of any size. That being
so, there is no reason to suppose that any of the decision-makers in
the disciplinary process have it in for lawyers who practice by themselves
or with just a few others. Likewise, there is no reason to suppose that
the other key players in the disciplinary process – the Bar’s disciplinary
counsel and the Supreme Court justices – favor large-firm lawyers over
small-firm ones.

There is, indeed, a 'perception' among some
Bar members that the disciplinary process is not fair to small firm
lawyers and solo practitioners. But that appears to be a misperception,
based on what the Task Force saw and heard during its year-long study
of the issue. And I think our report should say so, in just so many
words, instead of putting the matter 'aside' for yet another
task force. The first step in correcting a misperception is to identify
it as such.

At the end of the day, no Oregon lawyer should be left
still wondering whether the disciplinary process is fair to all practitioners
regardless of firm size. The lingering impression of unfairness is itself
unfair to all those who volunteer their time to make the process work.

Minority Report #2I join in all of the findings and recommendations in the Task Force’s
report, except I believe that Proposal No. 4 (Establish a 'Consumer
Assistance Program') is too narrow in concept and will not improve
or change the current disciplinary system in any significant way. While
I strongly support the creation of a Consumer Assistance Program (CAP),
I believe there are better CAP programs than the very modest one which
the Task Force is recommending.

Discussion re: Proposal No. 4
Proposal No. 4 is one of several CAP models which the Task Force considered,
and essentially duplicates the Ombudsman Pilot Program which the Oregon
State Bar funded for six months in 2000. Under this model, jurisdiction
for CAP attorneys is limited to matters outside the disciplinary system
('minor problems ... which do not involve an ethics issue')
and to phone inquiries, with 'all written inquiries concerning
lawyers' still being handled by Disciplinary Counsel. The one change
from the pilot program would allow Disciplinary Counsel to refer written
inquiries to CAP attorneys for intervention after determination that
they do not raise an arguable ethics issue.

I believe that both consumers and lawyers could benefit
from having a broader CAP program. Specifically, I advocate having CAP
attorneys perform the initial screening of all consumer inquiries received
by the Oregon State Bar, including written inquiries. I also advocate
having CAP attorneys available to provide early intervention in matters
beyond those which are strictly non-ethics inquiries, including situations
where there is an arguable ethics violation which is minor or technical,
and situations which could evolve into ethics violations without early
intervention.

Alternative Proposal No. 4
I propose the following alternative to Proposal No. 4 in the Task Force
Report:

Establishment of Consumer Assistance Program
The Oregon State Bar shall establish a Consumer Assistance Program (CAP)
for the purpose of screening all consumer inquiries received by the
Oregon State Bar. CAP attorneys would be separate from Disciplinary
Counsel and would be responsible for initial intake and triage of all
telephone, letter and in-person inquiries received by the Oregon State
Bar. For inquiries, which after review do not raise an actual ethics
issue, CAP attorneys would also be available for intervention in appropriate
cases and would attempt to resolve the inquiry through informal mediation
or other avenues outside the formal disciplinary system.

Discussion re: Alternative Proposal No. 4
Under Alternative Proposal No. 4, CAP attorneys would take care of all
initial consumer contacts with the OSB, with a goal of resolving as
many of them as possible without a formal complaint being filed. This
would aid both the public and attorneys. Members of the public would
have a voice and could perhaps get some resolution of their concerns,
instead of just being told that they can file an ethics complaint, which
will then be accepted or rejected. CAP attorneys would screen consumer
inquiries and work with those people who need help getting a file, getting
their phone calls returned, getting clarification of attorney/client
matters, or simply understanding their options. For attorneys, CAP intervention
could alert them to potential problems and prevent situations between
clients and attorneys from escalating into larger problems. This type
of CAP program would also address issues of delay in the present system
by allowing Disciplinary Counsel to focus on matters which are serious
enough to justify a disciplinary complaint.

With more screening and assistance at the front end,
it would be expected that fewer complaints would become disciplinary
matters and consumers would generally be more satisfied with the OSB
and the legal profession. The internal benefit would be that Disciplinary
Counsel staff, which currently screens all written complaints, would
be able to spend more of its time on matters of consequence. This program
would require an increase in staffing and/or a transfer of staffing
from Disciplinary Counsel.

History of Alternative Proposal No. 4
Alternative Proposal No. 4 is attached to this Minority Report. It represents
the recommendation adopted by the unanimous vote of all members present
at the committee meeting held on June 22, 2002. Alternative Proposal
No. 4 was included in the draft Report reviewed by the Committee on
July 13, 2002. The Proposal No. 4 included in the final report was adopted
by a vote of 5 to 4, with two members absent.

Whereas, the House of Delegates of the Oregon State
Bar has the duty in annual session to consider and debate matters of
concern to the membership of the Oregon State Bar and to provide learned
advice and direction on matters concerning the practice of law in the
State of Oregon;

Whereas, the House of Delegates of the Oregon State
Bar believes that there exists substantial confusion relating to the
purposes, priorities, processes, and allocation of authority in the
present system of Bar Discipline; be it therefore

Resolved, that the House of Delegates requests
and instructs the Board of Governors of the Oregon State Bar:

To establish and supervise a complete study of the State Bar disciplinary
system;

To report at the 2002 Oregon State House of Delegates meeting on
the results of the study; and

To make recommendations to the 2002 Oregon State Bar House of Delegates
meeting for changes to present processes, rules, and statues as needed.

This study shall provide the input from the members of
the Oregon State Bar and other interested parties within each region
of the Oregon State Bar and if possible, and with the assistance of
local county bar associations, within each county of the State of Oregon.

This study shall be broad in scope but will specifically
look at the following matters:

The specific purposes and goals of the disciplinary process;

The scope and limits of the disciplinary process;

The appropriate speed of the disciplinary process;

The appropriate rules of procedure to ensure an equitable process
fair to complainants and lawyers;

The process of setting enforcement priorities;

The clear establishment of authority throughout the process;

The appropriate use of volunteer members of the Oregon State Bar
or paid staff;

Appropriate methods, other than the present adversarial case law
systems, for the bar to debate; develop ethical rules; and educate
attorneys on those rules; and

Whether the goals and processes should be presented to and approved
by the House of Delegates.

Background

Since 1987 the Oregon State Bar has been involved in nine
separate reviews of the Disciplinary process:

During the same time, there have been increased calls
for more bar staff (to handle the cases), questions concerning the use
of volunteer bar members in the disciplinary process, requests for more
stringent rules related to cooperation with Bar ethical advice from
the Oregon State Bar, and major case (Gatti), which has lead
to the creation of special task forces and an emergency meeting of the
House of Delegates. Despite all of these activities, the disciplinary
process remains unknown by the general Bar membership.

There are a multitude of questions ranging from the purposes
and limits of the disciplinary process, the certainty of the ethical
rules, and the process of development of the rules, to the involvement
of Bar members in the basic honor of our profession.

This Resolution would require that the Board of Governors
create a full review process, hopefully including local Bar Associations
and Professional Legal Groups, to study the disciplinary process and
forward a report to the House of Delegates for discussion and the adoption
of possible recommendations.

It is time for the House of Delegates to review a full
study of Bar discipline and bring the special learning and skills of
our profession to debating and then confirming or creating an appropriate,
fair, and speedy system. It is time to ensure a just system to guarantee
our honor as attorneys and thereby protect the public that has given
us special status.

Presenter: James D. Hennings

OSB Disciplinary Task Force Questionnaire

This survey reflects a total of 495 responses from December
12, 2001 to January 10, 2002.

1. Within the last five years, have you served as a bar
volunteer for any of the following:

Board/Committee/Counsel

Count

Percent

SPRB (State Professional Responsibility Board)

1.4%

7/495

LPRC (Local Professional Responsibility Committee)

31/495

6.3%

Disciplinary Board

15/495

3%

Bar Counsel

11/495

2.2%

2. Within the last five years, have you served as defense
counsel for a lawyer named in a complaint to the bar or formally charged
with misconduct?

Answers

Count

Percent

YES

21/462

4.5%

NO

441/462

95.5%

SUMMARY

462/495

93.3%

3. Within the last five years, have you been named in
a complaint to the bar?

Answers

Count

Percent

YES

124/484

25.6%

NO

360/484

74.4%

SUMMARY

484/495

97.8%

4. Within the last five years, have you been formally
charged with misconduct?

Answers

Count

Percent

YES

19/484

3.9%

NO

465/484

96.1%

SUMMARY

484/495

97.8%

5. Within the last five years, have you been sanctioned
for a violation of the bars ethics rules?

Answers

Count

Percent

YES

17/484

3.5%

NO

467/484

96.5%

SUMMARY

484/495

97.8%

6. Within the last five years, have you filed an ethics
complaint against another lawyer?

Answers

Count

Percent

YES

54/482

11.2%

NO

428/482

88.8%

SUMMARY

482/495

97.3%

7. Do you believe you have a good understanding of how
the disciplinary process works procedurally?

Answers

Count

Percent

YES

301/492

61.2%

NO

191/492

38.8%

SUMMARY

492/495

99.3%

8. In your view, what is the primary function of the disciplinary
system?

Answers

Count

Percent

Protect public from unethical lawyers

123/489

25.2%

Punish lawyers for unethical conduct

30/489

6.1%

Combination of two

336/489

68.7%

SUMMARY

489/495

98.7%

9. In your opinion, how effective is the existing disciplinary
systemin enforcing the Code of Professional Responsibility?

Answers

Count

Percent

Very effective

78/479

16.3%

Somewhat effective

315/479

65.8%

Not effective

86/479

18.0%

SUMMARY

479/495

96.7%

10. Do you believe the existing disciplinary system provides
a lawyer with a full and fair opportunity to defend against a complaint?

Answers

Count

Percent

YES

300/440

68.2%

NO

140/440

31.8%

SUMMARY

440/495

88.8%

11. Do you believe their is bias in the disciplinary system?

Answers

Count

Percent

YES (go to 12)

213/452

47.1%

NO (go to 13)

239/452

52.9%

SUMMARY

452/495

91.3%

12. If you answered YES to question 11, on what factors
did you make your decision?

Answers

Count

Percent

Subject matter of lawyer's practice

101/495

20.4%

Size of lawyers firm

156/495

31.5%

Geographic location of lawyer's practice

65/495

13.1%

Gender of lawyer

22/495

4.4%

Ethnicity of lawyer

15/495

3.0%

Other

81/495

16.4%

13. Please check as many of the following items as you agree with concerning the disciplinary system:

Answers

Count

Percent

The process is too slow

197/495

39.8%

The process moves at an appropriate pace for all that is
involved

114/495

23.0%

The bar spends too much money on the process

61/495

12.3%

The bar should commit more money/resources to speed the
process

89/495

18.0%

The process has an appropriate mix of staff and volunteer
participation

The bar should establish an ombudsman-type program to help
lawyers and clients resolve disagreements separate and aprt from
its discipline process

293/495

59.2%

The bar should enact a rule that takes into account when
disciplining a lawyer whether that lawyer relied on an ethics opinion
provided by the bar

364/495

73.5%

The existing disciplinary process is fine. Minor tweaks
may be needed, but the system does not need a major overhaul

111/495

22.4%

ENDNOTES

1. The bias about which the Task Force heard
complaints did not involve race, sex, nationality, or similar 'individual
characteristics.' Rather, it involved practice areas and settings.
A recurrent complaint heard by the Task Force is that the current
system disproportionately focuses on sole practitioners, small town
practitioners, and those practicing criminal and domestic relations
law.

JR 6-101 The Judicial Conduct Committee of the Oregon
Judicial Conference may give persons subject to this code advice
in the form of informal oral advisory opinions or issue formal written
advisory opinions, or both, on questions under this code. The committee
shall:

(A) Maintain a log of its informal opinions and copies of its
formal opinions, which the chair of the committee shall make available
to the Oregon Supreme Court or the Oregon Commission on Judicial
Fitness and Disability on request.

(B) Disseminate its advisory opinions or opinion logs or both
as it determines appropriate to its role in giving advice on judicial
ethics and educating judges about this code.

JR 6-102 (A) In considering alleged violations of this
code, the Oregon Supreme Court or the Oregon Commission on Judicial
Fitness and Disability may consider any judge's good faith effort
to comply with a formal written opinion issued under JR 6-101 or a
requesting judge's good faith effort to comply with an informal oral
opinion given under JR 6-101 as:

(1) A showing of the judge's good faith effort to comply with
this code; and

(2) A basis for mitigation of any sanction that may be imposed
or recommended if the judge is found to be in violation of this code.

(B) This rule is not intended to preclude the Oregon Supreme Court
or the Oregon Commission on Judicial Fitness and Disability from considering
any other evidence of good faith or basis for mitigation.

3. BR 2.5(h)(2) provides: 'Notwithstanding
a determination by the SPRB that probable cause exists to believe
misconduct has occurred, the SPRB shall have the discretion to direct
that no further action on a complaint or allegation of misconduct
be taken by the Bar if one or more of the following circumstances
exist: the attorney is no longer an active member of the Bar or is
not engaged in the practice of law, and is required under BR 8.1 to
demonstrate good moral character and general fitness to practice law
before resuming active membership status or the practice of law in
Oregon; other disciplinary proceedings are pending that are likely
to result in the attorney's disbarment; other disciplinary charges
are authorized or pending and the anticipated sanction, should the
Bar prevail on those charges, is not likely to be affected by a guilty
finding in the new matter or on an additional charge; or formal disciplinary
proceedings are impractical in light of the circumstances or the likely
outcome of the proceedings. An exercise of discretion under this rule
to take no further action on a complaint or allegation of misconduct
shall not preclude further consideration or proceedings by the SPRB
on such complaint or allegation in the future.'

4. These factors may explain why the prior rule
was deemed ineffective. A party may be reluctant to resort to settlement
discussions before the case is ready for hearing, and frequently,
matters resolve 'on the court house steps,' literally. Since
a member of the Disciplinary Board was assigned to 'preside'
over the pre-hearing conference, but the SPRB would have to agree
to any stipulation regarding discipline, parties may have viewed the
process as a futile or pointless effort when the SPRB was the entity
responsible for initiating the formal complaint.